SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50841/99 
by Rufi OSMANI and others  
against the Former Yugoslav Republic of Macedonia

The European Court of Human Rights (Second Section), sitting on 6 April 2000 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr B. Conforti, 
 Mr P. Lorenzen, 
 Mrs M. Tsatsa-Nikolovska, 
 Mr A.B. Baka, 
 Mr E. Levits,

Mr A. Kovler, judges,

and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 15 July 1998 and registered on 9 September 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

 

THE FACTS

The first and second applicants Osmani Rufi and Dauti Refik were born in 1960 and 1944, and the third and fourth applicants Demiri Alajdin and Bexheti Vebi in 1949 respectively. They are living in Gostivar and Tetovo, the Former Yugoslav Republic of Macedonia. They are represented before the Court by Mr Yves Leonard, a lawyer practising in Brussels, Belgium.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

I. Background to the case

At the 1996 local elections the first and second applicants were elected mayor and chairman of the Gostivar Local Council, whereas the third and fourth applicants were elected mayor and chairman of the Tetovo Local Council. On 27 January 1997 the Gostivar Local Council took a decision implementing Article 140 of the Statute of the municipality of Gostivar on the use of flags. It provided that the Albanian and Turkish flags should be put along with the Macedonian flag in front of the Town Hall. On 20 March 1997 the Tetovo Local Council took a similar decision, following which the Albanian and the Turkish flags were put in front of the Tetovo Town Hall.

On 13 and 14 May 1997 the Government and a political party requested the Constitutional Court to examine the constitutionality and legality of the aforementioned Gostivar and Tetovo Local Councils’ decisions, arguing that neither the Constitution nor the Law on Flags granted power to the municipalities to regulate the display of minorities’ flags. On 21 May 1997 the Constitutional Court declared the request for examination of the constitutionality and legality of Article 140 of the Statute of the municipality of Gostivar admissible and suspended the validity of all municipal decisions implementing it by way of interim order.

On 24 May 1997 the first applicant organised a meeting at which the Macedonian flag was not flown but the Albanian national anthem was played. He delivered a speech in which he allegedly stated, inter alia, that the aforementioned interim order of the Constitutional Court should not be executed; while saying this he demonstratively threw away the court’s order. He further stated that the Albanians should sacrifice their life rather than the Albanian flag which had led them in many partisans’, balists’ and other movements for the liberation of Albanian territories; that the black hand of the Government wanted to put blood on the Albanian flag, but that the Albanians should send a clear message that nobody should touch their flag; that the Albanians should reply to a slap with a slap; that Gostivar would become an Albanian town and that a regionalisation project will be implemented by the use of the Albanian flag and language. He allegedly called the gathered citizens of Albanian ethnic origin to prevent the Albanian flag from being removed.

On 26 May 1997 a group of people of Macedonian ethnic origin tried to remove the Albanian flag which lead to a fight with citizens of Albanian ethnic origin.

It appears that on 31 May 1997 the first applicant set up central crisis headquarters with several regional branches. Allegedly, armed shifts were organised for the protection of the Albanian flag, a list of people with special responsibilities was drawn up and money was allocated for different activities, such as propaganda and communication, shelters for injured people, etc.

On 11 June 1997 the Constitutional Court abolished Article 140 of the Gostivar Statute.

On 25 June 1997 the Constitutional Court declared the request for examination of the constitutionality and legality of the Tetovo local council’s decision on the use of flags admissible and suspended its validity.

On 9 July 1997, at around 2 a.m., the police removed the Albanian and Turkish flags from the front of the Gostivar and Tetovo Town Halls.

When the police entered the Gostivar Town Hall they found three persons who were allegedly guarding the Albanian flag. They had a mobile phone given by the first applicant, who allegedly had instructed them to call him in case somebody would try to remove the flag. One of them was carrying a gun but had no licence for it. The other one stated that he had an automatic gun and ammunition at home.

On the same day, the police searched the first applicant’s home and seized three guns and some documents, including minutes of 31 May 1997 on the creation of the central crises headquarters and its regional branches; a list of persons responsible for different tasks, i.e., communication and propaganda, shelters for injured, finances, transport and security of the flag; and a copy of the first applicant’s speech delivered on 24 May 1997.

It appears that around 3 p.m. on the same day a group of citizens of Albanian ethnic origin gradually gathered around the Gostivar Town Hall. They were carrying weapons, molotov cocktails, metal sticks, rocks, etc. In subsequent clashes with the police three persons lost their life and many others, including police officers, were heavily injured.

The first applicant states that on the same day he was prevented by the police from leaving his office for 22 hours. Only after 4.30 p.m. he was allowed to address the people via a local TV station, following which the riots stopped. It appears that the police requested the first applicant several times to address the citizens, but that the applicant allegedly agreed to do so only if the Macedonian flag was removed from the front of the Gostivar Town Hall, the police forces withdrawn and detained persons released. The first applicant allegedly stated that one day the Albanian flag would be flown as the official one and not only as the flag of a minority.

II. Criminal proceedings against the first and second applicants

II.i. Proceedings before the Trial Court

On 10 July 1997 the first applicant was detained pending trial and on 8 August 1997 he was charged with stirring up national, racial and religious hatred, disagreement and intolerance by a public official and with especially serious organised resistance and non-execution of a decision or an order of a state organ. The second applicant was detained pending trial from 10 July 1997 to 8 August 1997. Along with the first applicant he was charged with non-execution of a Constitutional Court’s decision by a public official. The first applicant was released on 7 October 1997 from his pre-trial detention.

The first applicant challenged his indictment before the Gostivar Municipal Court, arguing that the Constitution guaranteed the right to freedom of expression and assembly, that the translation of his speech was not authentic and that there was no sufficient evidence to find him guilty of the offences which he was charged with. The Gostivar Municipal Court however dismissed his appeal on 26 August 1997.

The Gostivar Municipal Court held hearings on 11 and 12 September 1997, apparently from 9 a.m. to 9 p.m.. The concluding statements of the parties were adjourned to 15 September 1997 of which the lawyers was informed on 12 September 1997. During the trial the second applicant used his right to remain silent.

The first applicant’s lawyers requested interpretation into Albanian, but the first applicant complained that none of the interpreters appointed by the Court interpreted correctly, although they were all professionals and registered as official interpreters. It appears that after four interpreters had been replaced the applicant himself started speaking fluent Macedonian which induced the court to conclude that the first applicant did not need any interpretation.

In addition to hearing several witnesses the Gostivar Municipal Court examined, inter alia, typed and hand-written originals as well as a translation of the first applicant’s aforementioned speech, a video-tape of the aforementioned meeting, the minutes and other documents on the setting up of the central crisis headquarters and a list of persons who took part in those activities.

It appears that the court refused the applicants’ request to provide them with copies of these documents at the public hearing, on the ground that they had already seen them at the preliminary investigation stage and that they had a possibility to again examine them at the hearing. The court also refused to have the first applicant’s so-called “hate speech” translated by a specialised translation company, as it held that it was already translated authentically by a registered translator and that the first applicant could not point to any parts which were allegedly translated incorrectly. The court, having found that it had sufficient evidence in its disposal to conclude the case, refused to hear 25 witnesses, including the Prime-Minister and other members of the Government, which were proposed by the first applicant. The court further held that its working hours were a matter to be decided by the President of the court only.

On 15 September 1997 the applicants’ lawyers filed a motion for the concluding statements to be postponed. This was again requested by the applicants’ lawyers on 16 September 1997. As the court refused this on the ground that they had had four days to prepare their concluding statements, on 16 September 1997 the applicants’ lawyers refused to continue defending the applicants and left the courtroom, although the concluding statements were already once adjourned for the following day due to the substitution of some judges sitting in the panel. The applicants had not cancelled their power of attorney. The applicants had not requested an appointment of another legal counsel or the adjournment of the proceedings (see the relevant Domestic law).

On 16 September 1997 the court appointed an ex officio lawyer to represent the first applicant, as according to the relevant law a defendant who is charged with a criminal offence punishable with 10 years’ imprisonment or more must be represented by a lawyer. Due to the substitution of some judges sitting in the panel, a re-hearing was held on 15 September 1997 at which all the evidence was again examined and the first applicant’s ex officio lawyer was present. The concluding statements were adjourned to 16 September 1997.  The applicants were present all throughout the trial. The first applicant accepted the concluding statement of his ex officio appointed lawyer.

On 16 September 1997 the Municipal Court found the first applicant guilty on all three counts and sentenced him to 13 years and 8 months’ imprisonment. It held, inter alia, that the first applicant had been aware of the grave consequences which his speech could have and actually had, since it stirred up violence and caused the loss of three lives. By holding his speech as a mayor of a city with mixed population, he had caused the citizens of Macedonian ethnic origin to feel insecure and frightened.

The court provided and served the applicant with a certified translation of its judgement into Albanian, after the applicant had refused to be served with the judgement written in Macedonian.

II.ii. Proceedings before the Skopje Appellate Court

The applicants appealed to the Skopje Appellate Court against the Gostivar Municipal Court’s judgement. They argued that the equality of arms’ principle was violated and that the court had refused to examine all the evidence available. The first applicant stated, in particular, that the Gostivar Court had dismissed his requests that a handwriting expert be heard and his speech be translated by a specialised institution. He also complained that after his first lawyer stopped representing him, his second lawyer had been appointed by the court only one day before he was due to deliver the concluding statements. He further alleged that there had been a violation of his freedom of expression and that the videotape, on which his speech was taped, was taken in an unlawful way.

On 5 February 1998, in the applicant’s presence, the Appellate Court upheld the applicants’ conviction but mitigated the first applicant’s sentence to 7 years’ imprisonment and the second applicant’s sentence to 2 years’ imprisonment, on the ground that they had no criminal record. The court held, inter alia, that the applicant was not punished because he freely expressed his opinion, but for having stirred up national, racial and religious hatred, disagreement and intolerance. The criminal offence was made out by the first applicant’s call for a violent change of the legal order, which put in jeopardy the public security, territorial integrity and independence of the Former Yugoslav Republic of Macedonia and incited others to criminal action. It also held that there was sufficient evidence to conclude that the first applicant organised central and regional branches of the crisis headquarters.

As to the applicants’ procedural complaints, the court held, inter alia, that the applicants’ lawyers had had four days to prepare their defence, as the Municipal Court had adjourned the concluding statements to the following day; that the video tape of the first applicant’s speech was taken lawfully; that the applicants were offered four professional interpreters at the preliminary investigation stage and at the Municipal Court’s hearings, but that they were all rejected as incompetent by the first applicant, who then started speaking fluent Macedonian; that the applicants had made themselves familiar with all evidence and documents at the preliminary investigation stage and that they had had the opportunity to examine the evidence and to comment on it at the public hearing; and that the Gostivar Municipal Court appointed a lawyer for the first applicant after his previous lawyers had cancelled his representation in accordance with the relevant provision of the Code of Criminal Procedure.

II.iii. Proceedings before the Supreme Court

On 12 May 1998 the Supreme Court, in camera, dismissed the applicant’s appeal on points of law, holding that the Municipal and the Appellate Court’s judgements were precise and consistent and contained sufficient reasoning concerning the applicants’ complaints.

In respect of the applicants’ complaint that their lawyers did not have sufficient time to prepare the concluding statements and that the first applicant had not chosen the ex officio appointed lawyer, the court held, inter alia, that the lawyers had sufficient time to prepare the concluding statements as they were informed on 12 September 1997 of the date of the hearing. Moreover, on 15 September 1997 they knew that the court had decided to adjourn the concluding statements to the following day, as some judges sitting in the panel had to be replaced and, therefore, a re-hearing was to be held. In reality, the lawyers had four days to prepare the concluding statements. In spite of that they refused to continue with defending the applicants. The applicants had never cancelled the power of attorney of their lawyers which can be seen from the fact that in the following parts of the proceedings the same lawyers acted on their behalf. They had never requested the court to allow them to appoint another legal counsel, or to adjourn the proceedings.

The court further held that the Gostivar Municipal Court acted in accordance with the relevant domestic law when it appointed an ex officio lawyer to the first applicant. He participated at the hearing on 15 September 1997, was given access to the case file of the first applicant and had sufficient time to prepare the concluding statements on 16 September 1997. This lawyer had not acted to the detriment of the applicant, but on the contrary, he had followed the line of defence of the applicant’s previous lawyers.

II.iv. Proceedings before the Constitutional Court

On 2 March 1998 the first applicant complained before the Constitutional Court of a violation of his right to freedom of expression. On 8 April 1998 however the Constitutional Court dismissed his complaint as being manifestly ill-founded and contrary to the principle of legality. The court held that the applicant’s activities had directly infringed upon other people’s freedoms as set out in the Constitution and had therefore run counter to the very content and purpose of the freedom of expression. The Court noted in particular that, at the public meeting which the applicant had organised and where he delivered his speech, the Macedonian flag was not displayed, that the Albanian anthem was played and that the first applicant conveyed a message that the Albanian population was endangered, that it should fight to defend the flag and that Gostivar would become an Albanian town. In the Court’s opinion the applicant’s speech had provoked a riot in the course of which three people were killed and many injured. In conclusion, the first applicant had not stated his personal political or intellectual opinion, but had directly called the citizens of Albanian ethnic origin to fight against the legal order, thus causing hate, intolerance and tensions in a very sensitive inter-ethnical situation, as well as feelings of insecurity among the population of Macedonian ethnic origin.

III. Criminal proceedings against the third and fourth applicants

On 11 July 1997 the third and fourth applicants were charged with non-execution of a Constitutional Court decision by a public official, on account of their non-compliance with the interim order issued by the Constitutional Court on 25 June 1997. On 14 October 1997 the Tetovo Municipal Court, at its session in the applicants’ presence, found them guilty and sentenced them to 2 years and 6 months’ imprisonment. The Court held that despite the fact that the applicants were responsible for the execution of the Constitutional Court’s decision of 25 June 1997 and had been served with it on 30 June 1997, they had not removed the flags. What is more, the third applicant acted contrary to Article 43 of the Law on Local Self-Government by not informing the Tetovo Local Council that its decision on the flags was unlawful and by not informing the Government that the Tetovo Local Council took an unlawful decision.

On 26 December 1997 the Skopje Appellate Court, at its session in the applicants’ presence, quashed the Municipal Court’s judgement and referred the case back to it, considering that the Municipal Court’s reasoning was not sufficiently precise and consistent and that it was not proven that the applicants had been served in person with the Constitutional Court’s decision.

On 4 March 1998 the Municipal Court amended its judgement accordingly, but it still found the applicants guilty and sentenced them to 2 years’ and 6 months’ imprisonment. At this point of the proceedings the applicants’ lawyer refused to continue defending the applicants, as in his opinion the court had wrongly examined and assessed the evidence. The applicants stated to the court that they would not have any other lawyers appointed.

On 5 May 1998 the Appellate Court, sitting in camera, partially granted the applicants’ ensuing appeal and mitigated their sentence to 2 years’ imprisonment on the ground that they did not have any previous criminal record. On 9 July 1998 the Supreme Court, sitting in camera, upheld the Municipal and the Appellate Courts’ decisions.

IV. Amnesty

On 4 February 1999 the Parliament enacted the Amnesty Act following which all the applicants were granted amnesty and dispensed from having to serve their prison sentences.

B. Relevant domestic law

I. Constitution of the Former Yugoslav Republic of Macedonia (Устав на Република Македонија)

Section 16 of the Constitution of the Former Yugoslav Republic of Macedonia guarantees the freedom of belief, conscience, opinion and public expression. Section 21 guarantees the right to peaceful assembly. Section 110 paragraphs 1 and 2 provides that the Constitutional Court is competent to decide on the conformity of the government regulations and decisions with the Constitution and the laws, whereas paragraph 3 of the same section sets out the Constitutional Court’s competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation.

II. The 1996 Criminal Code (Кривичен законик)

Section 44 paragraphs 1 and 2 sub-paragraph 2 of the Criminal Code provide that when a perpetrator commits two or more offences the court shall firstly determine the sentence for each of them separately and afterwards determine a single sentence for all counts. If a court sentenced a perpetrator to imprisonment, the global sentence shall be heavier than each of those imposed in respect of each of the criminal offences committed, but not heavier than the total number of years of imprisonment imposed in respect of all offences, nor shall it exceed 15 years’ imprisonment.

Section 113 provides that a person who has been granted amnesty shall either no longer be criminally prosecuted for that offence, or have his or her sentence mitigated accordingly, or shall be dispensed from serving a sentence. In addition, the judgement against him or her might be deleted from the police record.

Section 155 provides that a person who by coercion, serious threat, fraud or in any other way impedes or disturbs the exercise of the right to a peaceful assembly, shall be fined or punished with up to 1 year imprisonment. Aggravated punishment is prescribed for an official who commits this offence by abuse of official position and powers.

Section 319 - Stirring up national, racial and religious hatred, disagreement and intolerance

(1) Any person who stirs up national, racial and religious hatred, disagreement and intolerance by coercion, ill-treatment, security threatening, by insulting national, ethnic and religious symbols, or damaging monuments and cemeteries, or causes this in any other way, shall be punished with 1 to 5 years’ imprisonment.

(2) A person who commits the offence set out in § 1 of this section by abusing his official position or powers and thereby causes riots and violence against people or huge material damage, shall be punished with 1 to 10 years’ imprisonment.

Section 377 – Non-execution of a judicial decision

(3) Any official or responsible person who is under a duty to execute a decision of the Constitutional Court of the Republic of Macedonia and who refuses to do so shall be fined or punished with up to 3 years’ imprisonment.

(4) When the perpetration of the offence set out in …§ 3 seriously impinges upon the rights of others or causes considerable damage, the perpetrator shall be punished with 1 to 5 years’ imprisonment.

Section 387 - Organising resistance

(1) A person who organises other people to resistance or to disobedience of lawful decisions, or orders of a state body, shall be fined or punished with up to 3 years’ imprisonment.

(2) If a lawful decision or an order of a state body has not been executed or if it has been executed with considerable hardships as a consequence of the perpetration of the offence set out in paragraph 1 of this section, or if this offence has been committed by a leader of a group, the perpetrator shall be punished with 1 to 5 years’ imprisonment.

III. The 1997 Code of Criminal Procedure (Закон за кривична постапка)

Section 7 of the Code of Criminal Procedure provides that a Macedonian citizen who belongs to the minorities shall have the right to use his or her own language in criminal proceedings. Interpretation shall be free of charge and performed by a registered court interpreter.

Paragraphs 1 and 2 of section 63 provide that an accused shall have the right to a legal counsel during the preliminary investigation and judicial proceedings and that he shall be informed of this right. Section 66, inter alia, provides that the president of the court shall appoint an ex officio legal counsel for an accused who has been charged with a criminal offence punishable with 10 or more years of imprisonment if the accused does not have a legal counsel. Section 68 provides that the accused may himself appoint another lawyer to replace the ex officio appointed lawyer. The president of the court may appoint another ex officio lawyer on the request of the accused if the appointed ex officio lawyer does not properly discharge his duties. 

Section 69 sets out the right of the legal counsel to be given access to the file when the prosecutor requests criminal proceedings to be opened against a person and before the investigating judge renders his decision to open such proceedings. Section 124 sets out the same right in favour of the accused but only after he has been questioned by the investigating judge in the course of preliminary investigation.

Sections 88 paragraph 4, 91 and 92 provide that an accused who has been found guilty shall reimburse the expenses for his lawyer appointed by the court, if he has sufficient financial means.

Section 161 provides that during the preliminary investigation, a legal counsel shall, inter alia, have the rights to be present during the questioning of the accused, during the hearing of witnesses and expert witnesses, and search of the home of the accused.

Sections 331 and 334 of Part 9, regulating the concluding statements of the parties, provide that after all the evidence has been examined and the witnesses have been heard, the parties to the proceedings shall deliver their concluding statements. The legal counsel or the accused shall present their defence and reply to the prosecution. After the legal counsel’s concluding statement, the accused shall have the right to speak and to say whether he accepts the defence of his lawyer.    

Section 293 sets forth that if a legal counsel leaves the courtroom and cancels his or her power of attorney and if there is no possibility for the accused, without prejudice, to appoint another lawyer, the court will adjourn the hearing. The court will immediately appoint another lawyer if this is required by the law.

Sections 354, paragraphs 1 and 3, 357, 362 and 364 provide that an appellate court may examine a case on the merits. They also set out the grounds on which an appellant may file an appeal with the appellate court such as an alleged violation of the criminal procedure and/or erroneous and incomplete finding of facts. Furtheron, they provide that the appellant has the right, inter alia, to request the appellate court to hold a public hearing (јавна седница), adduce new evidence or request re-examination of evidence and witnesses at a hearing (претрес) and orally present his submissions before that court. 

IV. The 1995 Law on Local Self-Government (Закон за локална самоуправа)

Section 44 of the Law on Local Self-Government provides that when a local council adopts a decision or regulation which is contrary to the Constitution or the laws, the mayor is under a duty to report this to the Government within 15 days from the adoption of the impugned decision or regulation.

V. The Amnesty Act of 4 February 1999

Section 1 of the Amnesty Act of 4 February 1999 grants amnesty to all persons convicted under sections 319, 377 and 387 of the Criminal Code for having stirred up national, racial and religious hatred, disagreement and intolerance, and/or for not having executed a judicial decision, and/or for having organised other people to resistance and disobedience of lawful decisions, or orders of a state body. Section 2 provides that the prison authorities where the convict, referred to in section 1 of this Act, is serving a prison sentence shall, ex officio, start the proceedings for his liberation. If a convicted person has not yet started serving his prison sentence then the courts shall, ex officio, start the proceedings for the implementation of the Amnesty Act. 

COMPLAINTS

The applicants complain under Article 6 §§ 1 and 3 (c) and (d) of the Convention, of a violation of their right to a fair trial before an impartial and independent tribunal. In particular, they complain that the criminal proceedings against them were unfair, as according to them they amounted to a “political trial”; that the judges were biased - they were influenced by the Government; that the applicants were not represented by a lawyer in some parts of the proceedings; that their right to equality of arms was violated, as the court had not examined some of the evidence they had made available to it and that the courts wrongly assessed the evidence.

In addition, the first and the second applicants complain under Article 6 §§ 1 and 3 (b) that at the trial stage they were not given copies of some of the evidence which the Court relied on and that at the proceedings before the Gostivar Municipal Court their lawyers did not have sufficient time to prepare their defence. The first applicant complains under Article 6 § 3 (e) about a lack of interpretation into Albanian. The third and fourth applicants also complain under Article 6 in conjunction with Article 14 of the Convention that at the trial stage they were discriminated against due to their ethnic origin.

In addition, the first applicant complains under Articles 10 § 1 and 11 § 1 that he was unlawfully detained and that his rights to freedom of expression and assembly were violated by the police action. He also invokes Article 5 § 3. The first applicant also complains together with the second applicant under Article 7 that the courts imposed too harsh a sentence.

THE LAW

1. As regards the first applicant’s complaints under Articles 10 § 1 and 11 § 1 about the alleged breach of his rights to freedom of expression and assembly, the Court considers that it cannot, on the basis of the case file, determine their admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicants complain respectively under Article 6 §§ 1 and 3 (b) (c) (d) and (e), taken alone and in conjunction with Article 14.

The applicants complain about the unfairness of the criminal proceedings against them, as according to them it was a “political trial”. In particular, they complain that the judges were biased, as they were influenced by the Government; that the applicants were not represented by a lawyer in some parts of the proceedings; that their right to equality of arms was violated, as the court had not examined some of the evidence they had made available to it and that the courts wrongly assessed the evidence.

In addition, the first and the second applicants complain that at the trial stage they were not given copies of some of the evidence which the court relied on and that their lawyers did not have a sufficient time to prepare the concluding statements. The first applicant complains about a lack of interpretation into Albanian. The third and fourth applicants also complain that at the trial stage they were discriminated against due to their ethnic origin.

Article 6 of the Convention insofar as relevant provides as follow:

“1.  In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law… .

3.  Everyone charged with a criminal offence has the following minimum rights:

(b)  to have adequate time … for the preparation of his defence;

(c)  to defend himself … through legal assistance of his own choosing ;

(d)   … to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

Article 14 of the Convention reads:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. Complaints under Article 6 §§ 1 and 3 (b), (c), (d) and (e) 

a) Common complaints

As to the complaint that the judges were biased

The Court recalls the presumption according to which a judge is impartial until there is proof to the contrary (cf: the Le Compte, Van Leuven and De Meyere v. Belgium judgement of 23 June 1981, Series A-43, p. 25, § 58 and the Debled v. Belgium judgement of 22 September 1994, Series A 292-B, p. 43, § 37). In order to examine the impartiality of the judges, the Convention organs’ apply an objective test: whether the judges offered guarantees sufficient to exclude any legitimate doubt in respect of their partiality; and a subjective one: whether the personal conviction of a particular judge in a given case gives rise to his or her partiality.

In the instant case, all the applicants appeared before regular courts. In the first instance the first and the second applicants appeared before the Gostivar Municipal Court which was composed of one professional judge and two lay-judges, whereas the third and the fourth applicants appeared before a single professional judge of the Tetovo Municipal Court. In the subsequent proceedings they all appeared before the Appellate, Supreme and the Constitutional courts, which were all composed of professional judges. Furthermore, before the Court the applicants have not substantiated their allegation that the judges were influenced by the Government.

The Court finds therefore that the complaint under Article 6 § 1 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

As to the right of defence

The applicants complain that they were not represented by a lawyer in some part of the proceedings before the municipal courts. The Court notes that upon the refusal of the Gostivar Municipal Court to adjourn the concluding statements of the parties, the first and the second applicants’ lawyers terminated their power of attorney. The third and the fourth applicants’ lawyer also unilaterally terminated his power of attorney when the applicants’ case was referred back to the Tetovo Municipal Court by the Skopje Appellate Court. The Gostivar Municipal Court appointed a lawyer for the purpose of legal representation of the first applicant, as he was facing a grave sentence. The second applicant did not request another lawyer as he could have under domestic law, and the third and the fourth applicants stated to the court that they would not have any other lawyer appointed.

The Court recalls the Melin v. France judgement of 22 June 1993, where the Court held that as the applicant had deliberately waived his right to be assisted by a lawyer, he was under a duty to show diligence himself. Accordingly, he did not suffer any interference with the effective enjoyment of the rights guaranteed under Article 6 (Series A, No. 261-A, § 25). Furthermore, in the Edwards v. United Kingdom judgement of 16 December 1992, the Court held that when there is no indication that the proceedings before the Appellate and the Supreme Court were in any respect unfair, the defects of the original trial were remedied by those subsequent proceedings. In the instant case all the applicants were present during the trial and were able to give their own statements, and during the proceedings before the Appellate and Supreme Courts they were all represented by the lawyers of their own choosing who had represented them before the first instance courts (Series A, No. 247 - B, §§ 33 and 39).

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected in accordance with Article 35 § 4.

As to the evidence

The applicants further complain that the courts refused to examine the evidence proposed by them and that the courts wrongly assessed the evidence.

As to the first complaint the applicants allege in particular, that the courts refused to hear witnesses on behalf of the applicants. As a general rule, it falls to the domestic courts to assess the relevance of the evidence which a defendant seeks to adduce. In the Vidal v. Belgium judgement, the Court ruled that Article 6 § 3(d) leaves it in principle to the courts to assess whether it is appropriate to call witnesses, which means that this provision does not require the attendance and examination of every witness on the defendant’s behalf. The essential aim of Article 6 § 3 (d), as is indicated by the words “under the same conditions”, is a full equality of arms in the matter (25 March 1992, p. 14, § 33).

As to the applicants’ case, the Court notes that the domestic courts gave several reasons why they had not called the witnesses whom the applicants wanted to be heard. For example: the first applicant requested the examination of 25 witnesses including the Prime-Minister and other members of the Government. In that court’s opinion, there was enough evidence to decide the case and the applicants had not sufficiently substantiated why the witnesses they proposed to be called were key witnesses.

The Court further recalls the Edwards v. United Kingdom judgement of 16 December 1992, where the Court held that when there is no indication that the proceedings before the Appellate and the Supreme Court were in any respect unfair, the defects of the original trial were remedied by those subsequent proceedings (Series A, No. 247 - B, § 39). In this particular case the Court notes that the applicants are complaining only about the municipal courts’ proceedings and that they had a possibility to request the examination of the same evidence before the Skopje Appellate Court, of which they did not avail. Consequently, they had not exhausted all domestic remedies within the meaning of Article 35 § 1 of the Convention in this respect.

It follows that this part of the application has to be rejected under Article 35 § 3 of the Convention.

As to the applicants’ allegation that the courts wrongly assessed the evidence, the Court recalls that it is not within the province of the Court to substitute its own assessment of the facts for that of the national courts. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were “fair” within the meaning of Article 6 § 1 (Dombo Beheer B.V. v. the Netherlands, judgement of 27 October 1993, § 31). The Court notes that in the instant case, the applicants were given sufficient opportunity to come forward with their arguments and that these arguments, while duly taken into account by the domestic courts, were nevertheless rejected on the basis of a reasoning which appears consistent and void of any arbitrariness.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

b) The first and second applicants’ complaints

As to the alleged lack of time for the preparation of concluding statements by their lawyers

In the instant case the Court observes that the applicants were represented by the lawyers chosen by them from the moment when they were arrested on, 10 July 1997, and throughout the preliminary investigation when the lawyers were present during the different investigation activities, including the questioning of the applicants, and were given access to the applicants’ file. They also challenged the first applicant’s indictment. In the course of the trial, the three first applicant’s lawyers and the second applicant’s lawyer were present at the hearings of 11 and 12 September 1997 before the Gostivar Municipal Court at which, inter alia, they requested examination of evidence and hearing of witnesses, replied to the prosecution and presented their defence.

As to the time available for the preparation of the concluding statements, on 12 September 1997, in accordance with the criminal procedure, they were informed that they would have to finalise the defence on 15 September 1997, which is the date on which the concluding statements were due. Even if the hearings on 11 and 12 September 1997 had lasted from 9 a.m. to 9 p.m., they still had two full days, on 13 and 14 September 1997, on which there were no hearings. Moreover, they knew on 15 September 1997 that the concluding statements were adjourned to the following day due to the fact that some judges sitting in the panel had to be replaced. On 16 September 1997, they again requested the court to adjourn the concluding statements. After this was refused, all four lawyers chose to leave the courtroom, in spite of the fact that the applicants had not cancelled their power of attorney.

As regards the alleged lack of time for the first applicant’s ex officio lawyer to prepare his concluding statements, the Court recalls that an ex officio lawyer must be appointed in good time before the hearing (appl. no. 7909/74, decision of 12 October 1978, DR 15).

In the instant case, the first applicant’s ex officio lawyer was appointed on 16 September 1997, after the first applicant’s lawyers had refused to continue with the defence. He was given access to the first applicant’s file and was present at the hearing of 15 September 1997, at which all the evidence was examined again. The ex officio lawyer was present when the first applicant’s lawyers presented the defence, so he was able to familiarise himself with their arguments and reasoning. The first applicant had neither requested the appointment of another lawyer nor complained about the ex officio lawyer’s appointment and his concluding statements and he had not requested the proceedings to be adjourned, as he could have done in accordance with the domestic law. 

On 16 September 1997 when the ex officio appointed lawyer delivered the concluding statement, the first applicant was present at the trial. He was given an opportunity to speak and to present his own defence. He stated that he had accepted his ex officio lawyer’s defence. In view of the above, the Court considers that the first applicant has not submitted any evidence that his right to a fair trial was infringed by the way in which his ex officio lawyer was appointed.

Having regard to the normal workload of a lawyer and the complexity of the first and second applicants’ case, the Court is satisfied that the applicants’ lawyers and the first applicant’s ex officio lawyer had sufficient time to prepare the concluding statements.

The Court further recalls the Edwards v. United Kingdom judgement of 16 December 1992, where the Court held that when there is no indication that the proceedings before the Appellate and the Supreme Court were in any respect unfair as a whole, the defects of the original trial were remedied on appeal.  (Series A, No. 247 - B, § 39).

In the instant case, in respect of the alleged lack of time to prepare the concluding statements by the applicants’ lawyers and the first applicant’s ex officio lawyer, the Court observes that the applicants never complained of the quality of defence presented by their lawyers or the first applicant’s ex officio lawyer and that the same lawyers who had defended the applicants at the trial stage continued to defend them in the appellate proceedings. The applicants never provided the appeal courts with specific example of how they were prejudiced by the alleged lack of time of their lawyers and the first applicant’s ex officio lawyer to prepare the concluding statements. Moreover, before the Appellate Court, at a public hearing, the applicants and their lawyers had the possibility to request examination of witnesses or evidence and to add to their statements everything which they could not state before the Municipal Court due to the alleged lack of time (see Relevant domestic law). In the instant case their sentences were even mitigated by the Appellate Court. Furtheron, the Supreme Court duly examined their appeal on the points of law and addressed all the issues raised by the applicants. Therefore, the Court is satisfied that the applicants had a possibility to cure the eventual defects of the trial procedure in the proceedings before the Appellate and the Supreme Court.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

As to the alleged non-provision of the copies of documents at the trial stage

The Court notes that the applicants’ lawyers were given access to the file at the preliminary investigation and at the main trial (see Relevant domestic law). The right for an accused to have access to the file does not imply a right to be provided with copies of all documents of the file. It suffices if the accused or his lawyer is given a reasonable opportunity to inform himself about the content of the file in order for him to prepare his defence. The applicants have not indicated that this was not the case in the present instance. (cf: the Feldbrugge v. Netherlands judgement of 29 May 1986, Series A-99, pp. 17-18, § 44 and the Kamasinski v. Austria judgement of 19 December 1989, Series A-168, p. 40, § 88).

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

c. The first applicant’s complaints

As to the admissibility of the videotape

The first applicant complains that the videotape, on which his speech was recorded, was taken in an unlawful way. He recalls that Article 6 § 1 of the Convention embodies the rule that the evidence must have been collected by legal means.

In this case, the applicant organised a public meeting and delivered his speech in public. It follows that everybody could attend the meeting, hear the first applicant’s speech and record it. The domestic law allows the use of videotape as evidence. Furtheron, no evidence has been provided by the applicant, as to who recorded the impugned videotape, the police or a TV station. The applicant has not provided the Court with any details to substantiate his allegations.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

As to the lack of interpretation

The Court recalls that an interpreter must be competent in order for the applicant’s right under Article 6 § 3 (e) to be practical and effective (the Kamasinski v. Austria judgement of 19 December 1989, Series-A, no. 168, p. 35, § 74). However, an accused who understands and speaks the language used in a court cannot insist upon the service of a translator to allow him to conduct his defence in another language, including the language of an ethnic minority of which he is a member. (appl. No. 10210/82, Decision of 7 December 1983, DR (1984) p. 207, § 8).

In the instant case, the first applicant had the benefit of a free interpretation by four qualified registered interpreters of Albanian ethnic origin who work as official interpreters for the court, the Parliament and other state institutions. However, the applicant complained about their interpretation and started speaking fluent Macedonian, which induced the court to conclude that the first applicant did not need any interpretation. In this connection, the court noted that the applicant was born and educated in the Former Yugoslav Republic of Macedonia. The Court further recalls that after the applicant refused to be served with the judgement in Macedonian, the court provided and served the applicant with a certified translation of its judgement into Albanian. The complaint is unsubstantiated.

It is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

B. As to the third and fourth applicants’ complaints under Article 14 taken together with Article 6

The third and the fourth applicants complain under Article 6 in conjunction with Article 14 that they were discriminated against in the criminal proceedings due to their ethnic origin. However, they have not produced any evidence to substantiate their allegations.

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

3. The first applicant also complains of a violation of Article 5 § 3 of the Convention which provides that: “Everyone arrested or detained in accordance with Article 5 § 1 (c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.”

However, the applicant has failed to indicate the substance of this complaint. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

4. The first and second applicants complain under Article 7 § 1 that the courts imposed too harsh a sentence.

The Court finds that the applicants were held guilty of a criminal offence which was clearly punishable by the domestic law when it was committed. The sentence was also clearly provided for by the law. There is therefore no appearance of a violation of Article 7.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, by a majority,

DECIDES TO ADJOURN the examination of the first applicant’s complaints under Articles 10 § 1 and 11 § 1 in respect of the alleged violation of his rights to freedom of expression and assembly.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis

Registrar President

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